Bremner v French

[2023] NSWSC 1488

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Bremner v French (No 3) [2023] NSWSC 1488

Hearing dates:

29 September, 20 October

Date of orders:

29 September; 24 October; 1 December 2023

Decision date:

01 December 2023

Jurisdiction:

Equity - Commercial List

Before:

Parker J

Decision:

See [197]-[199]

Catchwords:

JUDGMENTS AND ORDERS – amending, varying and setting aside – where orders made in 2019 for appointment of trustee to sell co-owned property under Property Law Act 1958 (Vic) – ability to vary orders concerning sale – application of Woods v Sherriff of Queensland – variations made

COSTS – solicitor/client – ability for sale trustee to recover costs – where delay in seeking extension of date for sale – where application had to be brought – sale trustee costs limited to those would have incurred in bringing application at relevant time

Legislation Cited:

Conveyancing Act 1919, Pt 4, Div 6

Property Law Act 1958 (Vic), Pt 4, ss 228(1), 231(1), 232, 233

Partition Act 1868 (Imp) (31 & 32 Vic c 40)

Uniform Civil Procedure Rules 2005, rr 36.15(2), 36.16(3B)

Cases Cited:

Application of Richard Albarran; Harb v Harb (2010) 17 BPR 33,295

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199

Callow v Rupchev (2009) 14 BPR 98410

Forgeard v Shanahan (1994) 35 NSWLR 206

French v Bremner [2019] NSWSC 1033

French v Bremner [2020] NSWCA 339

French v Bremner [2020] NSWCA 77

French v Bremner (No 2) [2019] NSWSC 1504

French v Bremner (No 2) [2020] NSWCA 211

Groch v Knights (2018) 19 BPR 38,869

MacedonianOrthodoxCommunityChurchSt Petka Inc v His Eminence Petar The Diocesan Bishop of TheMacedonianOrthodoxDiocese of Australia and New Zealand (2008) 237 CLR 66

Pannizutti v Trask (1987) 10 NSWLR 531

Re Beddoe [1893] 1 Ch 547

Ryan v Dries (2002) 10 BPR 19,497

Woods v Sheriff of Queensland (1895) 6 QLJ 163

Texts Cited:

K Mason, JW Carter and GJ Tolhurst, Mason & Carter’s Restitution Law in Australia (4th ed, 2021, LexisNexis), [840]

Category:

Consequential orders

Parties:

Notice of Motion filed 10 August 2023
Christopher Piers Julian Bremner (Applicant)
Andrew Boyd French (First Respondent)
Jason Stone (Second Respondent)
The Trustee of the Property of Andrew Boyd French, a debtor (Third Respondent)

Representation:

Counsel:
D Parish (Applicant)
Andrew Boyd French (Self-represented)
J Simpkins (Second Respondent)
A Spencer (Third Respondent)

Solicitors:
Aitken Lawyers (Applicant)
Harris Carlson Lawyers (Second Respondent)
Matthews Folbigg Lawyers (Third Respondent)

File Number(s):

2014/101136

Publication restriction:

Nil

JUDGMENT

1. Before the Court is an application by way of notice of motion to vary earlier orders of the Court appointing a trustee for sale of certain properties. The orders required the properties to be sold within a fixed period. That period expired without any of the properties having been sold. The applicant sought to have that period extended.

2. On 29 September, I made an order granting an extension as sought. There remained some issues between the parties about the way in which the sale and division of the proceeds should take place, and, after a further hearing on 20 October, I made further orders on 24 October dealing with those issues. In this judgment, I give reasons for those earlier orders. I also deal with costs issues that had been reserved.

3. The properties the subject of the orders are located in rural Victoria. The orders appointing a trustee for sale were made under Part 4 of the Property Law Act 1958 (Vic), which corresponds with Division 6 of Part 4 of the Conveyancing Act 1919 in this State. I will refer to those pieces of legislation as the “Victorian Act” and the “NSW Act” respectively.

4. The properties are co-owned by Christopher Piers Julian Bremner, the applicant on the motion, and Andrew Boyd French, the first respondent. Mr French (who is not now legally represented) appeared at the hearing of the motion to oppose the extension and made submissions at the subsequent hearing about the other directions to be made about the sale and distribution of the proceeds.

5. The trustee appointed under the orders was Mr Jason Stone. He is a registered liquidator who is a partner of the accountancy firm PKF in Melbourne. I will refer to him as the “Sale Trustee”. Initially, Mr Stone was not named as a party to the motion, but he actively participated in it and on 29 September was formally joined as the second respondent.

6. Some years after the initial orders were made, Mr French entered into a personal insolvency agreement under Part X of the Bankruptcy Act 1966 (Cth). The agreement allocates specified items of Mr French’s property for division among his creditors by a trustee (“the PIA Trustee”). That includes Mr French’s share of some, but not all, of the properties which are the subject of the order. The PIA Trustee participated at both of the motion hearings. At the second hearing, it was agreed that the PIA Trustee would be joined as the third respondent to the motion.

Background

7. The orders were initially made on the application of Dr Bremner following a lengthy trial in proceedings between him and Mr French. The trial arose out of cross-claim proceedings brought by Mr French, as cross-claimant, against Dr Bremner, as cross-defendant (the principal proceedings, which were brought by the original plaintiff, Provident Capital Limited, against Mr French, ended many years ago).

8. The issues around the making of the orders formed only a relatively small part of the overall dispute between Mr French and Dr Bremner. As a matter of pleading, the issues arose in a second cross-claim in the proceedings, in which Dr Bremner was the cross-claimant and Mr French was the first cross-defendant.

9. Dr Bremner’s cross-claim also raised similar issues about another property in rural Victoria which had been acquired in the name of Gabrielle June Bakey, who is the de facto wife of Mr French; she was the second cross-defendant. I will refer to that property as the “Corringle Beach Homestead”, as I did in my August 2019 judgment (Corringle is located on the Gippsland coast, at the mouth of the Snowy River). Dr Bremner’s claim to an interest in that property failed. Ms Bakey was not affected by the orders which are the subject of this application, and she was not named as a respondent to the motion.

10. The appointment of the Sale Trustee under the October 2019 orders was, in one sense, final. But the present motion has been brought in Dr Bremner’s cross-claim proceedings which are, to that extent, continuing. When I ordered that the PIA Trustee be joined as a respondent to the motion, I also ordered that the PIA Trustee be joined as the third cross-defendant to that cross-claim.

11. The orders which are the subject of the motion followed delivery of a reserved judgment on the claims between the parties in August 2019: French v Bremner [2019] NSWSC 1033 (“J1”). After further hearings on the form of the orders to be made to give effect to my conclusions, and on costs, the orders were made on 31 October 2019: French v Bremner (No 2) [2019] NSWSC 1504 (“J2”). An appeal by Mr French, and a cross-appeal by Dr Bremner, were dismissed in December 2020: French v Bremner [2020] NSWCA 339 (“CA”).

12. There were five properties which were the subject of the October 2019 orders. Three of them were coastal, being located at or near Corringle. The other two were inland, one at Mount Hotham and the other at Deddick Valley, which is east of the Snowy River.

13. The circumstances in which the properties were acquired are recounted in my August 2019 judgment, in particular at J1 [94]-[95], [101]-[104] and [307]-[322]. For the purposes of this judgment, they may be summarised as follows.

14. The properties were purchased from November 2007 onwards pursuant to an informal arrangement, akin to a joint venture, between Dr Bremner and Mr French. All except one of the purchases had been settled by September 2008. The arrangement was that the properties would be acquired in the names of Dr Bremner and Mr French, but with Dr Bremner providing most, if not all, of the purchase monies. Agricultural or tourism ventures would then be established on the properties by Mr French.

15. Four of the properties were registered in the names of Dr Bremer and Mr French as tenants in common in equal shares. When I delivered my August 2019 judgment, I assumed that the same had happened for the Deddick Valley property (cf J1 [309]). In fact, the position was more complicated. A contract had been entered into by Dr Bremner and Mr French, as purchasers, with the then owner, and the purchase money had been paid. But the property had not been transferred into the names of Dr Bremner and Mr French and stamp duty had not been paid (see J2 [14]). Nevertheless, on the face of it, Dr Bremner and Mr French had an equitable interest in the property as tenants in common.

16. Mr French and Ms Bakey first occupied the Corringle Beach Homestead property in November 2007, and, over time, came to live there permanently. Mr French undertook works and agricultural and tourism ventures on at least some of the five properties which are the subject of this judgment. These activities were funded by payments made by Dr Bremner from time to time (see J1 [109]).

17. Dr Bremner’s payments were not exclusively referable to the five properties the subject of this application, or activities on those properties. The monies were also used by Mr French in continuing attempts to commercialise an invention which was the main subject matter of his claim against Dr Bremner. Two additional properties had also been acquired in Dr Bremner’s name (J1 [7]) at or near Corringle, and, according to Mr French, some of the monies were spent by him on looking after those properties. It also seems that some of the monies went towards the living expenses of Mr French and Ms Bakey.

18. The relationship between Mr French and Dr Bremner broke down in 2011, and the payments from Dr Bremner ceased at around that time. Mr French and Ms Bakey continued to live at the Corringle Beach Homestead and Mr French continued in occupation of the five properties the subject of this judgment. That remained the case when I made the orders of 31 October 2019, and it apparently still remains the case. Mr French also appears to have remained in occupation, up to 31 October 2019, of the properties bought in Dr Bremner’s sole name, but he had no entitlement to remain in occupation and Dr Bremner presumably would have obtained possession after those orders were made (see J2 [8]).

19. As part of his claim against Dr Bremner, Mr French alleged that the recurrent payments by Dr Bremner to which I have referred, were made pursuant to a contractual agreement between the parties, whereby Dr Bremner was to recompense Mr French for his expenditure, and the work done by him, on the Victorian properties (J1 [21]). Mr French alleged that Dr Bremner was also obliged to fund the commercialisation of his invention. According to Mr French, Dr Bremner had not been entitled to cease funding when he did. Mr French claimed damages for breach of the alleged contractual agreement.

20. Dr Bremner denied that there was any binding contractual agreement between himself, and Mr French of the type alleged. He did not however make any claim for repayment or restitution of the payments which he had made to fund Mr French’s activities. But he did, as already noted, lay claim to the properties which had been acquired with his money.

21. Dr Bremer’s principal claim, in this regard, was that the properties were, in equity, held on resulting trust for him. This reflected the fact, which was not disputed, that he had contributed most if not all of the purchase funds (these contributions were quite separate to the funding payments to which I have referred). It was as an alternative to this resulting trust claim, that Dr Bremner sought orders for the sale of the five jointly owned properties.

22. I rejected Dr Bremner’s resulting trust claims. In the face of the instructions expressly given concerning the registration of those properties, I was not satisfied that a resulting trust arose (J1 [457]-[467]).

23. My reasoning on the appointment of a trustee for sale is at J1 [468]-[473]. Jurisdiction to grant relief under the Victorian Act is usually exercised by the Victorian Civil and Administrative Tribunal (“VCAT”). But in certain circumstances, that jurisdiction may be exercised by the Supreme Court of Victoria, and this Court was in a position to exercise that jurisdiction under the legislative cross-vesting scheme. The circumstances of the case fell within the jurisdiction of the Supreme Court. Once that point was reached, the grant of relief was virtually as of right, and no ground was advanced on behalf of Mr French for why orders for sale should not be made.

24. Another area of dispute between the parties concerned yet further payments made by Dr Bremner to Mr French. These payments were made before the Victorian properties were acquired, at a relatively early stage of the parties’ relationship. Dr Bremner contended that the payments were loans. This was disputed by Mr French, but I found in favour of Dr Bremner on that point.

25. As a consequence, the orders made on 31 October 2019 provided for judgment to be entered in favour of Dr Bremner against Mr French in the sum of $3.1 million. The judgment was to carry interest at the rates prescribed by s 100 of the Civil Procedure Act 2005, which the Court of Appeal later increased to 5% (see CA [64]-[74]).

26. It would have been obvious at the time that Mr French’s liability under the judgment greatly exceeded the value of his remaining assets. Presumably, it was the judgment debt in favour of Dr Bremner which prompted Mr French to enter into the personal insolvency arrangement under the Bankruptcy Act, which resulted in the allocation of his share of the proceeds of three of the properties to the PIA Trustee.

27. The orders appointing the Sale Trustee, which are the subject of the present motion, were as follows:

2. Pursuant to section 231(1)(a) of the Property Law Act 1958 (Vic), Jason Stone, PKF Melbourne (Trustee) be appointed as trustee for the sale of the following properties with effect from 18 November 2019 (Appointment Date):

[details of the five properties were given],

(together, Jointly Owned Properties).

3. With respect to the Deddick Valley Property, the Trustee shall seek to obtain the consent of the registered proprietor of the property to transfer title to the property to such person who may purchase the property as a result of the sale process set out in the order in paragraph 5, and to do all such things and sign all such documents as may be necessary to effect the transfer.

4. In the event the Trustee is unable to obtain the consent of the registered proprietor of the Deddick Valley Property referred to in paragraph 3:

(a) Bremner and French pay all and any stamp duty (including any associated fees, interest or penalties) in respect of the transfer of title in the property to them as tenants in common in equal shares by no later than the date which is 4 weeks after the Appointment Date;

(b) in the event that one party (Party A) contributes an amount which is greater than 50% of the stamp duty payable pursuant to the order in paragraph 4(a) (Excess Contribution):

(i) Party A is entitled to recover the Excess Contribution from the other party (Party B); and

(ii) Party B’s residual share of the proceeds of sale of the Jointly Owned Properties shall be subject to a charge in favour of Party A in the amount of the Excess Contribution;

(c) in the event that all stamp duty (including any associated fees, interest or penalties) is not paid in accordance with order 4a, the Trustee shall pay such stamp duty (including any associated fees, interest or penalties) out of the proceeds of sale of any one or more of the other Jointly Owned Properties as contemplated by the order in paragraph 5(e)(v); and

(d) Bremner and French take all steps necessary to effect the transfer of title in the property to them as tenants in common by no later than the date which is 2 weeks after a request is made of them to do so by the Trustee.

5. With respect to each of the Jointly Owned Properties (including, in the case of the Deddick Valley Property, the whole of the estate and interest held by Bremner and French in that property), pursuant to s 231(2) of the Property Law Act 1958 (Vic):

(a) the Trustee sell the property by way of either public auction or private treaty (at the Trustee’s discretion) at a date no later than 12 months after the Appointment Date;

(b) the reserve price for the auction be determined by the Trustee;

(c) French give access to the property to the Trustee and any real estate agent appointed by them to act on the sale of the property at such time and on such day as the agent may reasonably require, including (without limitation) for preparation of marketing material and for the purposes of inspection by intending purchasers and at “open for inspection” times and dates as the agent shall suggest;

(d) either Bremner or French may purchase the property whether at auction or otherwise;

(e) the proceeds of sale be applied as follows:

(i) in payment of any unpaid costs and expenses associated with the sale including remuneration owing to the Trustee;

(ii) in repayment to either Bremner or French of any moneys reasonably expended by each or either of them in costs or expenses of the sale, including agent’s expenses, Trustee’s costs and expenses and holding costs and any outstanding council rates or land tax;

(iii) in repayment of the legal expenses including costs and disbursements incurred on the sale of the property by either party;

(iv) in payment of any Excess Contribution pursuant to the order in paragraph 4(b);

(v) in payment of any unpaid stamp duty (including any associated fees, interest or penalties) in respect of the Deddick Valley Property in accordance with the order in paragraph 4(c);

(vi) as to any remainder, to Bremner and French equally.

6. Pursuant to s 231(4) of the Property Law Act 1958 (Vic), the Trustee is authorised to charge at the rates set out in Exhibit C and is authorised to deduct all such rates from the proceeds of sale of the Jointly Owned Properties.

28. These orders were based on a minute of order submitted by Dr Bremner’s legal representatives. There was some debate with Mr French (who by then was representing himself) about them. I dealt with these issues in my judgment of 31 October 2019.

29. In my judgment, I noted that I had given Mr French an opportunity to negotiate with Dr Bremner about the sale of the properties without going to the expense of appointing a Trustee for Sale, but that no agreement had been reached. The appointment of a trustee was therefore inevitable (J2 [13]).

30. I also referred to the conveyancing difficulty with the Deddick Valley property. After noting that, strictly speaking, the interest of Dr Bremner and Mr French in the property was as joint owners of an equitable interest, I stated (at [17]-[19]):

So far as the Deddick Valley property is concerned, the orders therefore provide for Mr Stone to be appointed as trustee for the sale of the estate and interest held by Dr Bremner and Mr French in the property. The orders also contain provisions for Mr Stone to seek the consent of the registered proprietor to transfer title directly to the purchaser; or alternatively, if consent cannot be obtained, to transfer the property into the names of Dr Bremner and Mr French.

The orders require Dr Bremner and Mr French to pay the applicable stamp duty. Recognising that Mr French is unlikely to pay, the orders provide that Dr Bremner may pay the whole of the stamp duty and recover that in due course out of the proceeds of sale.

Mr French initially objected to having to share payment of the stamp duty. He said that Dr Bremner had never paid the stamp duty despite his requests at the time. But on my findings Dr Bremner had no obligation to pay the stamp duty. I think the payment of duty is properly seen as a cost of the sale. Accordingly, it is right that it should ultimately be paid out of the proceeds of sale, and thus, like other sale costs, be shared between Mr French and Dr Bremner as co-owners.

31. Read on its own, the statement in [19] that Dr Bremner had no obligation to pay the stamp duty might have been misleading. I was referring to Mr French’s allegation that Dr Bremner had a contractual obligation to indemnify him against all of the costs of acquiring, improving and operating the properties in question. What I was saying was that Dr Bremner had no obligation, as had been alleged, to pay the whole of the stamp duty.

32. But this did not mean that Dr Bremner had no obligation whatever so far as the stamp duty was concerned. The intention had been to acquire and register the properties in the names of both parties (J1 [321]). In those circumstances Dr Bremner and Mr French would have been jointly liable, at least in equity, to pay the stamp duty on the transfer.

33. Another matter which I addressed in my judgment of 31 October 2019 was an application by Mr French to have the final orders in favour of Dr Bremner stayed. Mr French had, on 12 September, filed a notice of intention to appeal to the Court of Appeal against my August judgment (strictly speaking this may have been premature, because I had not at that stage made final orders, but nothing turns on this). He had also, on 15 October, filed an application to the High Court of Australia to have the proceedings moved into that Court. He sought a stay on the ground that the sale of the properties would interfere with his farming operations, and in particular with the “welfare” of his stock. I did not consider that this was sufficient, in the circumstances, to justify a stay and I refused Mr French’s application (J2 [36]-[44]).

34. Mr Stone’s appointment took effect on 18 November 2019, pursuant to the Court orders. In the conduct of the administration, Mr Stone was assisted by Mr Mitchell Stewart, an employee of PKF. Mr Stone (or others on his behalf) corresponded with representatives of the law firm Johnson Winter Slattery (“JWS”), who was then acting for Dr Bremner, and Mr French. Mr Mark Easton was the relevant representative of JWS. The correspondence also refers to a colleague of his, David Grainger. Some, but not all, of the correspondence was in evidence before me on the motion. Later interlocutory judgments in the Court of Appeal also reveal something of the course of events. I have drawn on both sources in what follows.

35. On 15 November, Mr French filed a Notice of Appeal instituting an appeal to the Court of Appeal against my orders of 31 October 2019. If consistent with the argument presented by Mr French on his stay application, the orders sought would have included the setting aside my orders for the sale of the properties. But the Notice of Appeal is not in evidence so this cannot be confirmed.

36. On 22 November, Mr Stone wrote to Mr French, confirming his appointment. He also advised that, in accordance with the orders, he would arrange a time to inspect the properties and discuss sale options.

37. On 27 November, Mr French sent an email to PKF, copying JWS. Mr French referred to the removal proceedings in the High Court and the appeal proceedings in the Court of Appeal. He advised against spending any time or funds on the matter until the final result was known. He further advised that he would not be responsible for any such fees incurred. Instead, if he succeeded, any such fees would be paid by Dr Bremner and his lawyers, and not from the sale proceeds. Mr French sought confirmation from PKF that this was understood.

38. There is no record in the evidence of any immediate response to Mr French’s email from PKF. But there was a response from JWS, in the form of an email sent by Mr Easton later that day (which was copied to PKF). Mr Easton rejected Mr French’s assertion that he, or JWS, were responsible for Mr Stone’s fees. Mr Stone had been appointed under orders of the Court order, which specified what he was to do and the funds from which he was to be paid. That evening, Mr French replied by email (also copied to JWS). He maintained that by proposing Mr Stone as trustee, Mr Easton had “engaged” him. He also complained more generally about the conduct of the litigation.

39. At the same time, Mr French was sparring with Mr Easton about the removal proceedings and the appeal proceedings. It seems that no appearance had been entered on behalf of Dr Bremner in either proceedings. On 25 November, JWS wrote to Mr French stating that they had no instructions to appear in either proceedings.

40. Then, only two days later, on 29 November, the position was reversed. JWS entered an appearance in the appeal proceedings and also filed a Notice of Cross-Appeal. The Notice of Cross-Appeal joined both Mr French and Ms Bakey as cross-respondents. It evidently challenged my findings that the Corringle Beach Homestead property, and the five jointly owned properties, were not held on resulting trust, although the Notice of Cross-Appeal was not itself in evidence before me.

41. On the same day, 29 November, Mr French wrote again to JWS. Mr French alleged breaches of professional obligations. He continued:

You appear not to know or are wilfully blind to the power of the High Court under S 24 Judiciary Act 1903 to punish Contempt of its power and authority. You are solicitors of the record, and Court appointed Trustees, and have no way to avoid what is on the Record in the Supreme Court which by reference to S 129 (5) (b) Evidence Act 1995 (New South Wales and the Commonwealth) is admissible against you if I file a Summons in Form 21, under Rule 11.02 High Court Rules 2004. Your refusal to accept responsibility for the contempt of Parker J, and counsel you instructed for their gross negligence over the past five years, must come to an end.

You may need to contact your professional negligence insurers as you cannot avoid responsibilities for the bad and negligent advice given to Dr Christopher Bremner leading him to fail in his fiduciary obligations. Unless I am advised that you have accepted your obligations as Solicitor of the Record, I will file early next week the necessary summons against you, the Court appointed Trustee for Sale, and Dr Christopher Bremner who may never return to Australia, in order to finalise this matter once and for all.

Your best option is a settlement by consent.

42. This email was copied to PKF who, later that day, wrote to JWS. After referring to Mr French’s email, PKF continued:

As discussed today, please advise if there any changes to the order or new orders that alter our position as Trustee for the sale of the 5 joint properties.

Also, do these appeals referred to by Andrew French alter our position?

43. JWS replied on 3 December:

I confirm that:

1. there have been no charges to the Court orders made on 31 October 2019 (previously sent to you) which alter your position as Trustee; and

2. the appeals referred to by Mr French also do not alter your position.

Unless you hear otherwise from us, you should proceed in accordance with the orders.

44. It appears that PKF then took steps towards obtaining valuations of the properties. By a letter dated 18 December, a valuer attached an instruction and authorisation form. The total fee was to be $16,855. PKF advised JWS of this quote on 20 December, and sought confirmation that Dr Bremner would meet this cost. JWS replied later that day, advising that it would seek instructions from Dr Bremner.

45. PKF also advised that it had “sought proposals from agents near the various properties with a view to listing them early in the New Year”. Some correspondence with one agent is in evidence. An email was sent to a local real estate agent on 17 December about the three coastal properties. The agent was asked for any background information or knowledge he might have about the properties, and a proposed method for sale.

46. On 7 January, the agent responded, indicating that a colleague of his had dealt previously with one of the properties. It appears that colleague had sold one of the properties to Mr French in the past. The author also wrote that “they” (which may be a reference to Mr French and Dr Bremner) “have purchased about five or six different properties in the area”.

47. The agent mentioned, in connection with the delay in responding to the query from PKF, that there had been a “situation” with “the fires in the area”. This was a reference to the early part of the devastating 2019-2020 bushfire season, in which parts of Gippsland were badly affected. After 7 January, the bushfire danger in south-eastern Australia remained extreme, with further outbreaks taking place over the ensuing weeks. Further threats may have emerged to the three coastal properties (or the two inland properties) over that period. But there was no specific evidence of this.

48. Meanwhile, Mr French continued to pursue Dr Bremner over the removal application, and in particular the failure to enter an appearance within the time limited by the High Court rules. In December, he filed a Notice of Motion in the Court of Appeal seeking to have the Court deal with the removal application (pursuant to its powers under s 17 of the Judiciary Act 1903 (Cth)) and give “default judgment” in his favour on his claims against Dr Bremner.

49. On 11 March, the removal application was dismissed by two justices of the High Court, but Mr French pressed on with his motion in the Court of Appeal, which came before Basten JA in April: French v Bremner [2020] NSWCA 77. His Honour dismissed the application for “summary judgment”. He did however vacate the hearing date for the appeal, which had been fixed by the Registrar for July, and returned the appeal proceedings to the Registrar for the fixing of a hearing date later in the year. The main reason for this was the difficulty occasioned to Mr French by the Covid-19 pandemic, which was then getting underway.

50. Under the then directions, Dr Bremner’s submissions were due on 27 May. But on 19 May, JWS filed a notice of intention of ceasing to act, which was followed by a notice of ceasing to act on 26 May.

51. Dr Bremner appears to have taken no steps to retain another firm to act for him in the appeal proceedings, or to prosecute the cross-appeal. After two months however, JWS agreed to resume acting for Dr Bremner, and a fresh Notice of Appearance was filed in the appeal proceedings on 28 July.

52. On 4 August, Mr French and Ms Bakey filed notices of motion seeking to have Dr Bremner’s cross-appeal against them struck out on the ground that Dr Bremner had failed to prosecute it with due dispatch (and, in the case of the cross-appeal against Ms Bakey, on the ground that the cross-appeal lacked substance). On 17 August, Mr French’s appeal was fixed for hearing on 4 and 5 December. The motions by Mr French and Ms Bakey concerning the cross-appeal came before Basten JA on 4 September: French v Bremner (No 2) [2020] NSWCA 211.

53. One of the points taken on behalf of Dr Bremner was that Mr French was in contempt of the orders made on 31 October 2019, in that he had not satisfied the judgment entered against him on Dr Bremner’s cross-claim. Counsel submitted on Dr Bremner’s behalf that Mr French should not be heard on his application. Counsel submitted that this was so even if Dr Bremner, by his conduct, had acquiesced in Mr French’s failure to comply with the judgment.

54. Basten JA was not satisfied that there was any principle which precluded a party from taking interlocutory steps in an appeal, at least where it was an appeal against an unsatisfied monetary judgment. His Honour also noted that Mr French had filed an amended notice of motion which included a stay of execution of my orders. He commented (at [13]):

… There is no basis for thinking that a stay is otherwise necessary; Dr Bremner has taken no steps to enforce the judgment whilst the appeals have been on foot, nor indicated any intention to do so prior to the hearing in three months’ time. In those circumstances it is not necessary to consider a stay.

55. His Honour nevertheless declined to strike out the cross-appeal against either Mr French or Ms Bakey. He considered that the delays in prosecuting it were not extreme and the cross-appeal against Ms Bakey should not be dealt with summarily. The two motions were dismissed.

56. Meanwhile, PKF appears to have taken no further action to pursue to the sale of any of the properties following the response from the agent about the coastal properties on 7 January (see [46] above). There was no response from Dr Bremner to the request that he cover the cost of obtaining valuations.

57. A later email records that representatives of PKF and JWS conversed by telephone “in mid-March”. At that time, Mr French’s application for “summary judgment” had not yet been determined, and it is possible that this was mentioned. There is, however, no evidence of what was discussed.

58. There is no further evidence of communications between PKF and JWS (or Mr French) until 11 June, when PKF emailed JWS to follow up on the March conversation. It sought an update and asked if any funds had been procured from Dr Bremner, and if “the appeals” had impacted the Court orders. By this stage, the removal application and the application for “summary judgment” had been dismissed. But when JWS replied on 17 June, all that the author said was that his firm ceased acting for Dr Bremner on 26 May, and he provided Dr Bremner’s contact email.

59. Nothing further appears to have occurred until 17 August, when PKF wrote to Dr Bremner. The correspondence set out the understanding that JWS had ceased to act for Dr Bremner, and that Mr French had lodged a successful appeal in the proceedings. Dr Bremner was asked to advise who was representing him, to provide an update on the proceedings, and to advise on whether he was willing to provide funds to cover the cost of obtaining valuations (“in the vicinity of $20,000”).

60. PKF also wrote to Mr French, by a letter of the same date. The correspondence set out the understanding that Mr French had lodged a successful appeal in the proceedings, and sought an update on the proceedings. Mr French replied two days later, advising that the matter was still before the courts, and expressing his hope that it would be finalised by the end of 2020 or early in 2021. PKF sought further information, in the following terms:

Can you spell out where everything sits for me? I.e. is your appeal still being appealed?

Also, is there any Orders that have been made that you can provide me?

61. Mr French replied the following day, writing:

There have been a number of hearings due to Mark Easton’s non-appearance at the High Court. This lead to a default action I commenced back in the Supreme Court NSW under S17 of the Judiciary Act. Justice Basten gave a judgment that was different from the case Mark Easton had put before the court.

1/ Andrew French was the inventor.

2/ there was a partnership

3/ There was a partnership property

These are all the things supporting my case as to what happened.

Mark Easton then ceased to act for Bremner.

But now he is back again after 2 months.

We have a hearing for dismissal for want of due dispatch on the 4^th Sept.

He has not followed the court orders again.

The appeal should be on at the end of this year or early next year and after Justice Basten’s Judgment I am feeling confident that we will be successful.

Covid has also slowed things down.

62. It is not clear where PKF got the idea that Mr French had been “successful”
    in his appeal. Clearly, he had not been successful. However, despite the misunderstanding, it seems that Mr Stone would have understood that the appeal was still pending.

63. On 7 September, PKF wrote to Mr French, seeking an update on the hearing for dismissal for want of due dispatch on 4 September (and sent a further email on 15 September). Mr French advised that the appeal was fixed for hearing in early December, and that the result would be known after that.

64. By the time PKF wrote to Dr Bremner on 17 August, JWS had in fact resumed acting for him. But neither Dr Bremner nor JWS appear to have replied. It seems that PKF did not learn until September, presumably as a result of it being referred to by Mr French in his correspondence (see [61] above), that JWS had resumed acting for Dr Bremner. An email of 5 October from PKF to JWS reads:

I spoke to a colleague of yours a few weeks back who advised had taken over the file since David Grainger’s departure from your firm. I cannot recall the name.

I advised him that the Court Order (attached) states the properties must be sold by 18^th November 2020 and that JWS ought to write to the Court advising that due the upcoming appeal hearing in December 2020 that the Order be amended to date after appeal (perhaps an additional 6 months).

I am now chasing an update as to the progress of this. It is only 5 and a half weeks away.

65. Based on emails exchanged on 13 October, it appears that representatives of PKF and JWS spoke shortly after that earlier email. PKF sought a further update and referred to the impending expiry of the Court order for sale. PKF noted JWS’ earlier advice (PKF originally referred to a person by a different name, but JWS confirmed that he was the relevant person, and that no person by that name existed) that he would seek an extension of 12 months, and Mr French’s consent. PKF sought an update on this too. JWS responded indicating that Mr French’s consent had been sought and that Mr French had told them he was considering his position.

66. PKF sought a further update on 21 October, noting that there was less than a month until the Court order expired. JWS does not appear to have replied.

67. PKF again emailed on 28 October. JWS sent the following reply later that day:

We asked Mr French if he would consent to a 12 month extension to the time period within which the Trustee should sell the properties. He has declined to do so, and indicated that he would object.

68. The last day for sale under the orders was 18 November. That being so, Mr Stone wrote to the Registrar of the Court of Appeal on the 17^th, seeking orders that:

1. the date for the sale of the properties be extended by 24 months to 18^th November 2022.

2. [D]r Bremner and Mr French pay $12,500 each for out of pocket expenses by 31^st December 2020. This amount includes the anticipated disbursement of obtaining valuations of the properties.

69. Mr Stone gave the following explanation for why he was seeking the orders:

Pursuant to point 5a of the Order [the orders of 31 October 2019], as Trustee, I was to sell the properties at a date no later than 12 months after the Appointment Date, being 18^th November 2019. To date, I have been unable to achieve this task. This has been mainly due to:

1.   The bushfires that ravaged regional Victoria throughout December 2019 and January 2020

2.   The COVID-19 pandemic and government restrictions that have been in place since March 2020.

3.   Lack of communication with Mr Bremner

4.   The current appeal by Mr French which is due to be heard in early December.

Points 1 and 2 above have severely hindered my ability to safely and lawfully inspect each of the five properties as well as the saleability of the properties. Without access to the properties, I have been unable to have the properties valued and subsequently listed for sale.

In respect of my dealings with Mr Bremner; on 20^th December 2019 we requested Mr Bremner cover the costs of obtaining valuations for the properties at an expected cost of $16,855 (Incl. GST). Since that correspondence, I have attempted to contact Mr Bremner to seek payment of this cost without a substantive response.

In the past months, I have corresponded with Mr. French who has advised me an appeal is due to be heard at the beginning of December 2020. Mr French has informed me that if he is successful, the Order would no longer be valid and the properties do not require selling.

70. The Registrar replied on the afternoon of 18 November, copying JWS and Mr French. He wrote:

As far as I am aware, there is no stay of proceedings in place. You may wish to consider filing a motion in the Equity Division proceedings in which you were appointed. That is a naturally a matter on which you might wish to take legal advice upon, and not something that the Court can advise or advocate for. That may of course increase the amount of Trustee expenses that will be deducted from the residue of the sale.

I have included the parties in the appeal proceedings in my reply. They may wish to consider proposing agreed orders to vary, or stay the orders of the primary Court, so as to avoid any unnecessary additional costs being incurred pending the determination of this appeal.

71. Mr French replied to the Registrar later that day (with copies to PKF and JWS). He wrote:

I requested a stay of the Trustee with Justice Basten. Justice Basten asked Bremner’s lawyers about it and then at that point Bremners lawyers stated that they did not want to proceed with the sale of land before the appeal and it was then left at that.

I don’t want any more costs involved and I didn’t choose or instruct the trustee, Mr Easton did.

Mr Bremner is responsible for any of his payments up front.

I ask that no more expense is incurred until after the appeal has a final judgment.

72. As we have seen, Basten JA only referred in his judgment to Mr French seeking a stay of execution of the unsatisfied judgment entered on the cross-claim. This had nothing to do with the orders for the sale of the Gippsland properties. The transcript of the hearing is not in evidence. However, JWS did not contest Mr French’s assertion that Dr Bremner did not wish to proceed with the sale until after the appeal.

73. On the afternoon of 3 December, PKF sent an invitation to Mr French to sign consent orders providing for the sale period to be extended by one year, until 18 November 2022, and the operation of the sale orders to be stayed until the appeal had been heard and determined. Predictably, Mr French refused. He replied on 7 December (with a copy to JWS):

The order for you to sell the properties has expired and was not extended by any of the 3 judges, as per your Short Minute of Order.

As previously mentioned I am not paying any of your costs.

I have never engaged you or instructed you.

You will need to recover any costs if you have any from Mr Easton.

74. Mr Easton responded later that day:

As you well know, the Trustee was appointed by the Court, he was not appointed by me, or by Mr Bremner.

I am not responsible for the Trustee’s costs. That matter is dealt with in the Court’s orders appointing the Trustee. Your statements to the contrary (including the statement on your email below) are incorrect.

75. Mr French sent two consecutive emails on 8 December, addressed to both JWS and PKF. In his first email, he wrote:

You presented to the Court the Trustee’s name of your choice.

The Trustee had conversations with your client Mr Bremner regarding payments in Dec 2019, as per letter attached.

I have never spoken to the Trustee about payment of any monies upfront or any payment to him at all.

Mr Easton, the Trustee was acting on your instructions, for your clients benefit, (not my benefit) and that’s why your client was to advance payments for valuations to him. He did not pay as it is his common practice and that was my problem with him and I had to cover many of his bad debts when he took off with my technology.

I have said many times in advance that I will not be paying for the Trustee and not to run up any costs before the Appeal is decided.

If you have proceeded with doing any work and incurring costs after I filed Appeal and I instructed not to, then the payment is all your responsibility.

If the land is to be sold by the Trustee in the future the Court of Appeal will give its directions in its judgment.

Mr Stewart, from the date of your contract by Mr Easton to the date of the Court of Appeal judgment you will need to recover all costs from Mr Bremner or his legal representative Mr Easton, if at that point you the Trustee is not going to be selling the land. If at that point you are going to be selling the land, then we will proceed.

I ask again that you to not incur any costs until the Court of Appeal is decided.

76. In his second email, he wrote:

Further to my email below this morning.

The reasons the Order has expired was not due to Bushfires and Virus entirely.

As you stated in your letter to the registrar, Bremner did not pay you for the valuations as he agreed he would in 2019.

Bremner was also unrepresented for a number of months during 2020 and he did not appear at the directions hearings during this time.

This then delayed the Appeal for many months and is this had not occurred the Appeal would have been on many months ago. The order time would not of expired before the Appeal and the court may of dealt with it.

Furthermore, The registrar did tell you to file a Notice of Motion regarding this but you did not do that.

Instead Mr Easton prepared a Notice of Motion for Cross Appeal on Bakey which was in the end not needed anyway and was not filed in court.

I think Mr Easton left he court before the Trustee issue was dealt with, but as the judges said is has now expired.

It has expired through no fault of mine but that of Bremner and his lawyers.

77. The Court of Appeal delivered its judgment on 18 December. A few days after this, JWS emailed PKF, providing a copy of the Court’s decision. JWS referred to two paragraphs of that decision as relevant to their appointment as Trustee. Those paragraphs ([115]-[116], from Leeming JA, who gave the leading judgment) read:

Finally, the orders made by the primary judge appointed trustees for sale of the properties co-owned by Mr French, for the purpose of satisfying the judgment debt. The dismissal of Mr French’s appeal carries with it the consequence that those orders remain in place. However, the orders only authorised the trustees to sell the properties within a 12 month period, which time has expired.

So far as I can see, there is nothing stopping Dr Bremner seeking an extension of that period, if the appointment of trustees for sale remains necessary. It would be in both Dr Bremner’s and Mr French’s interests to avoid the costs of such a renewed appointment.

78. The email continued by noting that the appeal had otherwise been dismissed “meaning that the sale of the properties is still required”. JWS further advised:

We intend to seek an extension of 12 months for you to carry out the sale noting that the time has currently expired under the previous orders, and will approach the Court for those orders in the New Year. We will keep you updated accordingly.

79. PKF replied on 1 February 2021, asking whether any foreshadowed approach to the Court for orders extending the sale period had been made, “so that we can address the Court directly ourselves”. Mr Easton replied later that day, indicating that orders would be sought to extend the Trustee’s appointment and the time for sale. He indicated that JWS would be in touch shortly about this.

80. But from there, progress appears to have come to a halt. On 3 May, PKF emailed JWS, noting an absence of further correspondence, and seeking an update on the matter, including on the progress in obtaining an order from the Court. JWS promptly advised of an absence of progress – the firm was “awaiting further instructions from Dr Bremner and [had] been for some time”. But it would provide an update when things changed.

81. Those instructions appear to have not come until July. On the 12^th of that month, JWS advised PKF that instructions had been obtained “to commence the process of enforcing the judgment and commencing the sale of the properties”. JWS asked for an estimate of upfront costs payable by Dr Bremner to sell the properties, and sent a follow up email on 21 July, again seeking this estimate. PKF replied later that day, advising that it was awaiting an updated valuation quote.

82. On 26 July, PKF advised that it had received the updated quote. The Trustee required $33,000 “to cover the out-of-pocket expenses such as the valuation, travel costs, advertising etc.”. PKF provided bank account details, and asked for confirmation once payment had been made. PKF also sought a further update on obtaining an extension of the sale period by Court order.

83. PKF emailed JWS on 21 September 2021 as follows:

As discussed in our call [(which had occurred two weeks beforehand)] we were contacted by Maddocks Lawyers who act on behalf of the Gippsland Council regarding 4/5 of the properties subject to the Trustee appointment. Maddocks advised that they had received judgment for 2 of the properties against Mr French for failure to pay council rates and were looking to take steps to realise the properties. In looking into the steps, they found out about our appointment. They will likely get judgment over the other 2 properties this year.

Also, in our call, you advised that Mr Bremner is back in Australia and we might possibly get the ball rolling regarding the sale of the properties and payment of the $33,000 mentioned in my email. Since our call, I haven’t seen any updates in this regard.

If the matter continues to be drawn out and Maddocks and the council step in to realise the properties, the sales of each may be significantly diminished. The council may not achieve market value and we will have no control over the sale.

Have you received any further instructions or updates from Mr Bremner? Is he able to pay the $33,000 to get valuations? Are you in a position to apply to the Court to extend the Orders to sell the property?

84. The correspondence in evidence peters out at that point. In his affidavit in support of the motion (see below), Dr Bremner stated that JWS ceased to act for him as of August last year, ten months later. He was put in touch with a new firm, Aitken Partners, “in around November” last year. It appears that at about that time, the Sale Trustee also retained solicitors to act for him.

85. In his first affidavit, Mr Stone stated that, on 7 November last year, Dr Bremner called PKF. From that time, PKF “commenced dealing with Dr Bremner directly to see whether the sale of the Jointly Owned Properties could be advanced”. It is not clear how this fits in with both parties retaining solicitors to act for them. The relevant correspondence is not in evidence. But according Mr Stone’s affidavit, PKF received a $44,000 payment from Dr Bremner on 13 December.

86. Dr Bremner’s affidavit in support of the motion was made on 1 April this year, in London, where he is now living, and has been since the previous December. According to Dr Bremner, after he was put in touch with Aitken Partners last year, they “required time to formally engage me [sic], read into the matter and confer with me to take instructions with respect to seeking an extension of time for the Trustee to comply with Orders”. Dr Bremner also referred to having been involved in a custody dispute with his former partner, in Australia, “which limited my focus on this proceedings [sic] at the time” (that time was not specified).

87. This evidence was quite inadequate to explain the delay by Dr Bremner in responding to the Sale Trustee’s request for funding, and in bringing the foreshadowed application to extend the sale period (in fairness to Dr Bremner’s lawyers, it should be noted that he seems prone to “going off the radar” for extended periods: see J1 [59]). Nor was there any evidence to explain the further delay before the affidavit and Dr Bremer’s notice of motion were filed on 9 August this year.

88. At the same time, there was no explanation for why the Sale Trustee apparently took no action despite Dr Bremner’s delays. The vendor of the Deddick Valley property died in 2021, but Mr Stone only seems to have learned about this in June 2023, when PKF received an email from the solicitor for the vendor’s executor, apparently as a result a chance discussion between Mr Stone and other members of the solicitor’s firm at a social occasion. There appears to have been no response to that approach until after the issue was raised at the hearing on 29 September (see below).

Extension of time to sell

89. As I have mentioned, on 29 September, Dr Bremner’s motion came on for hearing. Counsel for Dr Bremner and the Sale Trustee both submitted that the time fixed under order 5(a) for selling the properties should be extended for twelve months, until 29 September 2024. Counsel for the PIA Trustee did not oppose the order sought.

90. Mr French, however, opposed the extension. He complained forcibly about the situation in which he had been left, so he said, by Dr Bremner’s conduct. He said that he had been looking after the properties for years, and had continued to do so after the appointment of the Sale Trustee. In particular, so he said, he defended the properties during the 2019-2020 bushfires. All of this had been done, so he said, without any recompense, and for the benefit of Dr Bremner.

91. Mr French pointed out that Dr Bremner had failed to put up the money necessary to pay the stamp duty so that the Deddick Valley property could be sold. There had also been a period of almost three years after the expiry of the sale deadline during which neither Dr Bremner (nor the Sale Trustee) had taken any step to have it extended. Mr French submitted that there was no reason to do so now. Instead, the matter should be left for Dr Bremner, if he wished, to take “back to the Victorian courts”.

92. As will be seen, there may be room to criticise Dr Bremner for his inactivity since the orders were made. The Sale Trustee’s conduct of the administration may also be open to criticism. But in my view, such criticisms, if justified, are properly matters which go to costs (or, in the Sale Trustee’s case, his remuneration).

93. An unspoken assumption behind Mr French’s submissions (and, perhaps to an extent, those of other parties) was that, following the expiry of the deadline in order 5(a), Mr Stone’s role as trustee for sale had ceased. Dr Bremner’s application was understood as an application, in effect, to re-appoint Mr Stone as the trustee for sale.

94. In my view, this assumption overlooked both the form and substance of the orders made on 31 October 2019. Order 2 appointed Mr Stone as trustee for sale. Order 5(a) did not qualify, or impose some sort of condition subsequent, upon that appointment. It was only a direction to Mr Stone, as Sale Trustee, to complete the sale within a particular period.

95. It is not necessary to decide for the purposes of this judgment whether, upon the expiry of the deadline in order 5(a), Mr Stone’s powers to take further steps towards the sale of the properties ceased. Even if they did, Mr Stone remained the appointed trustee for sale. Dr Bremner and Mr French did not revert to their previous status as co-owners; their interests remained as beneficiaries of the trust. At the very least, Mr Stone was obliged to continue to hold and manage the properties in accordance with the remaining terms of the trust (as defined by the orders and directions of the Court). There was no room, while those orders stood, for the making of further orders by VCAT or anyone else.

96. In these circumstances, to refuse the application as Mr French asked me to do, would have been pointless. It would not have affected Mr Stone’s status as trustee or his obligations under the still-extant orders of 31 October 2019. Mr Stone would have been locked into his role as trustee, but would have lacked (or arguably would have lacked) the power to achieve the principal objective of the orders, namely the sale of the properties.

97. The only way out of this would have been to discharge all of the relevant orders made on 31 October 2019 (if that was possible, which I doubt, having regard to the rule in Woods v Sheriff of Queensland, referred to below). But no party asked for that. In view of Dr Bremner’s entitlement to have the properties sold, it would anyway have been necessary to make a fresh order for sale by someone else. Whatever criticisms might be levelled at Mr Stone for his stewardship of the properties to this point, that would plainly have been a wasteful and self-defeating exercise.

98. For these reasons, I ordered that the sale period specified in order 5(a) be extended for twelve months, as sought in Dr Bremner’s motion.

Further modification of orders for sale

99. In the course of the hearing on 29 September, various other issues about the conduct of the sale and the distribution of the proceeds were canvassed. This resulted in the identification of a list of issues to be the subject of further submission (and, to the extent necessary, evidence) for the following hearing. As these issues had the potential to result in modification of the order specifying the manner in which the sales were to take place and the proceeds were to be distributed, I suspended the operation of that order.

100. In all, eight separate issues were identified by counsel for determination at the subsequent hearing on 20 October. Not all of them were, however, debated at the hearing. I deal with the points which arose under six sub-headings below.

101. In advance of the hearing on 20 October, the Sale Trustee made two further affidavits. One provided an update on the progress of the sales and the reasons for the further orders sought by him. The other dealt with his fees and costs.

Further extension of time to sell

102. As already noted, the order which I made on 29 September extended the period for the sale of the properties by 12 months, to 29 September 2024. At the hearing on 20 October, counsel for the Sale Trustee sought a further 3-month extension, to 31 December 2024.

103. As I understood this application, it was based on potential difficulties in selling the Deddick Valley property and one of the Corringle properties. These were the two properties where Mr French’s share had not been transferred to the PIA Trustee and which (perhaps not coincidentally) seem to have been regarded as the most difficult to sell.

104. I could not really see what the difficulty was. It seems that the payment of the stamp duty was seen as an obstacle, or a potential obstacle, to the sale of the Deddick Valley property, but this was hard to understand. The Trustee has approached his task on the assumption that Dr Bremner could not be compelled to put up the money for the stamp duty on the transfer of that property. I questioned however whether this was correct.

105. According to its terms, order 4(a) imposed obligations on both Mr French and Dr Bremner to pay the stamp duty, and to do so within four weeks of the date on which the appointment of the Sale Trustee took effect. True it is that Mr French was never likely to comply, and did not comply, with that obligation. But on the face of it, Dr Bremner’s obligation was joint and several, so that he was obliged to put up the whole of the stamp duty if Mr French did not. That obligation could, if necessary, have been enforced by the Court on the application of the Sale Trustee. That still remains the position.

106. There was no suggestion that Dr Bremner lacks the means to pay the stamp duty. It therefore seemed to me that there was no good reason to think that the sale of the Deddick Valley property should be significantly delayed on account of that matter. Of course, that would not prevent a further extension of time being granted in future, if, as a result of later developments, there was good reason to do so.

107. When I put this view to counsel for the Sale Trustee, he did not demur. The Trustee’s request for a further extension of time was not pressed.

Mode of sale

108. As I understood the submissions made on behalf of Dr Bremner on 29 September, his contention was that the properties should be sold as soon as possible, and the way to do this was to sell them at auction, without a reserve. When the issue came back on 20 October, counsel for the Sale Trustee submitted that while sale at auction might generally be desirable, there needed to be some mechanism to ensure that properties were not sold for derisory sums if there were insufficient serious bidders at the auction. The Trustee’s affidavit also mentioned, in connection with one of the coastal properties, that he had been advised by a local agent experienced in the sale of such properties that it would be best sold by private treaty.

108. At the hearing, Dr Bremner’s position appeared to shift somewhat. It seemed from his counsel’s submissions that, while he continued to seek a sale at auction as quickly as possible, he was prepared to accept that there should be some fall-back to protect the owners in the event that an auction sale would yield an unrealistically low price. As I understood him, Mr French did not, in the end, seek any restriction on the mode of sale, if the sale of the properties was to proceed.

109. The orders made on 31 October 2019 expressly gave the Trustee a discretion to sell at auction or by private treaty, and, in the event of sale by auction, to fix the level of the reserve price, if any, at that auction. In the end, I did not understand that any party was pressing an application to vary these orders and I saw no reason to do so.

110. Counsel for the Sale Trustee did however seek to have some further orders made about the mechanics of sale. These included, for example, an order expressly empowering the Sale Trustee to execute the necessary instruments of transfer to complete the sales. There was, as I understood it, no opposition to these additional orders being made and I did so.

Valuation

112. The course of the sale process, as I have recounted above, shows that before taking any further steps, the Sale Trustee wished to obtain valuations of the properties and did not take any further steps of any substance to achieve sale when the funding for such valuations was not forthcoming. At the hearing on 29 September, I expressed some doubt about this approach. In particular, I questioned whether it really was necessary to have valuations of the properties undertaken.

113. In the affidavit prepared prior to the hearing on 20 October, the Sale Trustee continued to maintain that valuations should be obtained. He said:

… I am conscious that I will be selling the properties in my capacity as a trustee and want to ensure that I have a clear understanding of the value of the properties when considering offers (if they are sold by private sale) or setting a reserve (if they are sold by public auction).

114. The Sale Trustee recorded that he had obtained quotes for valuations of the five properties. Those quotes totalled $15,000.

115. At the hearing on 20 October, despite the position taken by the Trustee, I remained sceptical. As I understood it, any agent retained for the purpose of the sale of a property would, in the ordinary course, provide advice on what the vendor might hope to receive for the property and how to achieve the best price. This would include advice about the method of sale, and, in the case of sale by auction, the reserve price.

116. Naturally, advice from an agent would not be as reliable in determining the precise value of the properties as sworn valuations from a valuer. But the precise determination of the values of the properties was not required of the Sale Trustee. His task was to sell them for the best prices which could reasonably be received. It seemed to me that, for this purpose, advice on value and mode of sale from an agent would usually be sufficient. I found it hard to see why the expense of obtaining formal valuations could be justified.

117. When I put these views to counsel for the Sale Trustee, he did not join issue with any of them, and instead indicated that the Trustee would not proceed with obtaining formal valuations. In order to make the situation clear, I added to the orders of 31 October 2019 a direction that the Trustee not take any further step to obtain valuations of any of the properties without leave of the Court.

Allowances for preservation and improvement

118. As already noted, one of the Mr French’s complaints at the hearing on 29 September was that he had been looking after the properties without payment and indeed had incurred expenditure on them, which would give Dr Bremner a windfall gain on their sale. Counsel for Dr Bremner did not necessarily accept that this was in fact so, or that, if it was, some sort of allowance should be made in favour of Mr French. But it was clearly an issue which required further consideration.

119. Order 5(e) provided (in sub-paragraph (ii)) for the reimbursement of expenditure by Mr French (or Dr Bremner) out of the proceeds of sale, and the terms of the order specifically referred to “holding costs and any outstanding council rates or land tax”. But the language was muddled and, on the face of it, did not extend beyond out-of-pocket expenditure. It would not apparently have permitted payment of reasonable remuneration to Mr French for services allegedly rendered in looking after the properties, such as defending them against bushfire.

120. Amendments to order 5(e) would therefore be required if Mr French was to be able to recover proper recompense for what he claimed to have done. There was (and could have been) no dispute that the Court had ongoing power to vary or supplement the directions given to the Sale Trustee in the original orders of 31 October 2019 concerning the sale process and other purely administrative matters. But there was a question about whether it would now be possible to vary those to the extent to which they dealt with the distribution of the sale proceeds.

121. The question was not necessarily a straightforward one. The NSW Act (s 66G(6)) expressly empowers the Court to vary statutory trusts once created. As will be seen below, there may be limitations on that power. Furthermore, there appears to be no equivalent provision in the Victorian Act. Nonetheless, counsel for Dr Bremner accepted at the hearing on 20 October that a power of variation existed, although he contended that it should not be exercised in the particular circumstances of the case. In the light of this acknowledgment, I proceeded on the basis that it was open to me, in the exercise of discretion, to vary the orders, and I did not need to go into the question of power

122. Counsel for Dr Bremner, in submitting that no order, or at least no further order, should be made in favour of Mr French, submitted that to do so would run counter to my August 2019 judgment. Counsel referred to what I said at J1 [454]:

In any partnership action, it would have been necessary to take an account of the partnership dealings as a whole. This would have required Mr French to give credit for monies derived from the operation of the properties and the sale of the putative partnership assets such as the cattle. There is no way of knowing whether the balance would have been in favour of Mr French or Dr Bremner, and the answer is academic because no such claim is made by either party. On my findings, having regard to the way the case was pleaded, Mr French’s expenditure on the jointly owned properties lies where it falls.

Counsel submitted that the question of Mr French’s entitlement to recover expenditure or receive an allowance of remuneration for work done on the property was raised in the proceedings before me and I should not now permit Mr French to raise the issue again. Counsel submitted that this applied not only to expenditure and work on the property up to the date of appointment of Mr Stone as the Sale Trustee, but thereafter.

123. In my view, counsel’s points were well taken so far as the period up to 31 October 2019 was concerned. It had been clearly open to Mr French, had he wished to obtain allowances for expenditure incurred, works done and services provided up to that date, to seek such allowances as part of the process of making orders to give effect to my August judgment. And, if he had, it would not have been fair to make orders for allowances in his favour without taking into account the whole state of accounts between the parties, including the funding payments made by Dr Bremner from 2007 to 2011.

124. The period after 31 October 2019 (strictly speaking, after 18 November 2019, when the Sale Trustee’s appointment took effect) was different. Mr French had been in occupation of the properties as a co-owner, and any allowances he might have been entitled to depended upon his entitlements as such. From 18 November 2019, his rights and entitlements as co-owner ceased and were replaced by an interest, as beneficiary, in a share of the properties and any income derived from them (Application of Richard Albarran; Harb v Harb (2010) 17 BPR 33,295 at [16]-[19]). As occupier, he effectively became a licensee of the Trustee.

125. Treating the matter as one of discretion, it was my view that any allowance for preservation or improvement of the properties after 18 November 2019 would be quite different in nature. No question arose of contradicting the conclusions reached in my August judgment or of permitting Mr French to present evidence that he could have presented prior to 31 October. In these circumstances, it seemed to me that if, after 18 November, Mr French had in fact defended the properties from bushfire, or provided other services, or incurred other expenditure which preserved or enhanced their value for sale purposes, there was every reason, in principle, to allow him to recover for that.

126. Counsel for Dr Bremner pointed out that Mr French had effectively remained in occupation of the properties, and had done so voluntarily. Indeed, he might well have generated income from the properties for the period.

127. But, in my view, the answer to this point was that it did not impeach Mr French’s claim. If Mr French or entities associated with him have derived income from the properties then they will have to account for it. That possibility is not a reason for depriving Mr French of an ability to show, if he can, that he has enhanced the value of the properties by the provision of other services or by making other expenditure.

128. For these reasons, I modified sub-paragraphs (i) and (ii) of order 5(e) so as to make express reference to the provision of fire defence services. I also took the opportunity to improve the expression of sub-paragraphs (i) and (ii) more generally, and to limit their operation to the period after 18 November 2019.

Remuneration of Sale Trustee

129. The orders of 31 October 2019 expressly provided for the Sale Trustee to be entitled to charge at a specified professional rate and to take payment of his fees out of the sale proceeds. The precise quantum of the Trustee’s fees was not revealed at the hearing on 29 September, but it was obvious that some fees would have been incurred. And, while I did not necessarily endorse all of the criticisms made of the Trustee by Mr French, there was clearly room for argument about the way the administration had been conducted.

130. By the end of the hearing on 29 September, there did not appear to be any doubt about this. I decided to give Mr French an opportunity to contest the fees charged by the Trustee.

131. An affidavit setting out the Sale Trustee’s fees and expenses in itemised form was filed on 19 October, only one day before the resumed hearing. The affidavit disclosed that the total fees claimed by the Sale Trustee at 30 September were over $45,000. While the figure is not large in absolute terms, it is a significant sum given how little progress has been made on the sale of the properties to date.

132. Whether, had the affidavit been filed well in advanced of the hearing, Mr French would have been able to deal with the Trustee’s claims, I do not know. But the reality was that it would have been impractical to deal with this issue at the hearing on 20 October. Counsel for the Trustee proposed that the issue be held over until after the administration had been completed. On reflection, I considered that this was the appropriate course the follow and it remains an issue for further debate in due course.

133. For these reasons, when I made my orders on 24 October, I considered it necessary to vary orders 5(e)(i) and 6 which empowered the Trustee to deduct his fees from the sale proceeds, so that this entitlement was made subject to a prior assessment of the reasonableness of the fees by the Court. I did this by deleting the relevant orders.

Distribution of proceeds

134. As I have stated, the order of 31 October 2019 provided for the proceeds of sale to be applied in payment of the expenses of sale and other costs of the administration (including fees of the Sale Trustee), with the balance being divided equally between Dr Bremner and Mr French. Given my conclusions about the Trustee’s remuneration, it became necessary to vary or suspend the orders so as to allow the Trustee’s remuneration to be reviewed before any payment out was made. In my orders of 24 October, I did this by deleting the provision for payment of the net proceeds out to Dr Bremner and Mr French (sub-paragraph (vi)) from order 5(e).

135. There was also a question about the division of Mr French’s share of the proceeds. Counsel for the PIA Trustee negotiated an arrangement with the Sale Trustee, under which two sets of orders were to be made about the realisation process and the division of the proceeds. One set was for the three properties which were vested in the PIA Trustee; the other for the two remaining properties which remained property of Mr French. These orders provided in effect for separation of the proceeds for the two classes of properties. The proceeds of sale of the PIA properties were to go the PIA Trustee, and the proceeds of sale of the other properties were to go to Mr French. The proceeds of sale of the PIA properties were not to be used for the sale of the other properties, and vice versa.

136. At the hearing on 20 October, I questioned whether this was appropriate. As initially constituted, the trust for sale resulting from the orders of 31 October 2019 was a trust for the sale of all five of the properties. The Trustee’s duty was to sell all the properties and distribute the net proceeds. There were not five separate trusts for the sale of five separate properties. It would follow that monies derived from properties earlier sold could be expended on other properties, and, in particular, on paying for any expenses needed to sell those properties. It would be unnecessary to distinguish between those properties for the purpose of distributing those funds: Mr French and Dr Bremner would simply receive a half share of each.

137. It seemed to me that the circumstance that three of the properties had later been vested in PIA Trustee did not affect the terms of the obligations created by the earlier order. In particular, there would be no justification for quarantining the proceeds of the assets, so that they could not be used to fund expenditure on the sale of other properties.

138. When I put this to counsel for the Sale Trustee and the PIA Trustee, they did not demur. Accordingly, I made a single set of orders referring to both properties.

139. It remains of course necessary ultimately to divide Mr French’s net share of the proceeds between himself and the PIA Trustee. As at present advised, it seemed to me that the appropriate division would be pro-rata according to the value of the properties (as revealed by their sale prices). But it was unnecessary to form a final view and I reserved the question for further consideration at a later stage.

140. In this regard, counsel for the PIA Trustee foreshadowed the possibility of seeking a division of the proceeds which took account of the Sale Trustee’s expenditure and remuneration attributable to the sale of each property. One immediate practical difficulty, even if such an approach were correct in principle, is that it would not always be possible to identify whether a particular item of expenditure or fee charged was referable to the sale of a particular property in the relevant sense. Counsel’s riposte was that directions could be made requiring the Trustee to maintain records which would allow the breakdown to be calculated. In the end, I acceded to counsel’s request to give the PIA Trustee a later opportunity to apply to the Court for directions of this type to be given to the Sale Trustee (such directions were later given, without opposition, on 10 November).

Reconsideration of power to vary orders?

141. I have already noted that counsel for Dr Bremner presented his opposition to the variation of the orders of 31 October 2019 as a matter of discretion rather than power. But in the course of preparing this judgment it occurred to me that the following statement by Griffith CJ, speaking for the Queensland Full Court, in Woods v Sheriff of Queensland (1895) 6 QLJ 163, might have been in point (at 164):

… when a judgment or order is pronounced or made after hearing both sides, it is a general rule that the court which pronounced the judgment or made the order cannot reverse or vary it. … this rule … in my opinion applies equally to all judgments and orders, whether final or interlocutory, and whether pronounced by the Full Court or by a single judge, and whether he is sitting in court or in chambers …

142. The rule as expressed in his Honour’s language (“cannot”) is a limitation on the power of the court, not merely a matter of discretion. I have therefore thought it necessary to consider whether I might have erred in failing to satisfy myself that I actually had jurisdiction, in the light of the rule, to vary the orders in the way in which I did.

143. The rule does not apply to all interlocutory orders made by a court following a full hearing. What it does is to prevent a party from challenging an earlier order on the ground that the order was incorrect in the circumstances in which it was made. The rule does not prevent a party from arguing that an earlier order should be discharged or varied because the circumstances have changed. It is therefore necessary to consider the nature of the proceedings in which the earlier order was made.

144. Where a property is sold by a trustee for sale under an order of the Court, the quantification of the parties’ entitlements to the proceeds can be a complex and intricate task. That reflects its history, which has involved the interplay of various legal and equitable doctrines, as modified by statute.

145. The remedy of appointing a trustee for sale derives from the partition suit procedure in Chancery. The NSW Act (the relevant provisions of which date from 1930) can be traced back to an Imperial Act of 1868 (Partition Act 1868 (Imp) (31 & 32 Vic c 40)), which in turn had replaced the Chancery procedure: see Pannizutti v Trask (1987) 10 NSWLR 531 at 538. In Forgeard v Shanahan (1994) 35 NSWLR 206, the Court of Appeal held that the rules formerly applicable in partition suits should be applied for the purpose of working out the parties’ allowances under the statutory trust. Those rules were complicated but gave an entitlement, in some circumstances, to recoup costs of repairs and improvements by the co-owner in occupation, usually limited to the consequentially increased value to the property, together with a possible counter-entitlement to an allowance for rent: Forgeard at 223C-224A.

146. There were also overlapping legal and equitable entitlements which existed independently of partition but could be taken into account as part of the accounting process in a partition suit. One was the right of a co-owner not in occupation to an account of the income derived from the property by the co-owner in occupation: Forgeard at 221F-222D; but cf Ryan v Dries (2002) 10 BPR 19,497 at [64]-[65], Callow v Rupchev (2009) 14 BPR 98410 at [30]-[36]. Another was where one of the co-owners satisfied an obligation deriving from ownership of the property, such as rates or mortgage repayments, for which both had been liable. In that case the co-owner’s entitlement to equitable contribution could be taken into account: Forgeard at 224F.

147. In Groch v Knights (2018) 19 BPR 38,869, I expressed the view that the Court could make an order for sale without specifying exhaustively how the proceeds would eventually be divided up, on the basis that the accounting process could be the subject of later directions to the trustee for sale. But in saying this, I did not intend to convey that the Court has some sort of ongoing right to adjust the parties’ rights as it sees fit. The statutory definition of the trusts, powers and provisions to be declared by the Court refers to their being such as are “requisite for giving effect to the rights of the co-owners” (see s 66F and Groch at [38]-[39]). It is clear since Forgeard that the reference to “rights” is to entitlements under established legal and equitable doctrines. In Groch, I had in mind only that the process of quantifying the parties’ entitlements did not have to be defined at the outset and could be left to later determination.

142. The provisions of the Victorian Act are, on the surface, less prescriptive than those of the NSW Act. VCAT is given jurisdiction to make “any order it thinks fit to ensure that a just and fair sale or division of [the] land occurs” (s 228(1)). Nor is the appointment of a trustee automatic: VCAT is given power to appoint or remove trustees if it thinks that such appointment or removal is “necessary or desirable” (s 231(1)). If trustees are appointed, VCAT may direct the trustees “as to the terms and conditions on which any sale is to be carried out” and to direct the distribution of the proceeds “in any manner specified” (s 232(2)). VCAT is also given a list of other orders it may make in connection with the sale (s 232).

143. So far as determining the parties’ entitlements are concerned, VCAT is given power (by s 233(1)) to order the payment of compensation or reimbursement by one co-owner to any other co-owners (subparagraph (a)), to require an account in cases where a co-owner is out of possession (subparagraph (b)), and to make “an adjustment” to a co-owner’s interest “to take account of amounts payable by co-owners to each other during the period of the co-ownership” (subparagraph (c)). Although subparagraph (c) does not specifically say so, it would encompass equitable contribution under the principles recognised in Forgeard. VCAT must however take certain matters into account in making such an order (s 233(2)) and is not permitted to make an order for a payment of an occupation fee unless certain conditions are satisfied (s 233(3)). The effect of these restrictions is to reimpose some of the limitations in the previous law.

144. It is not necessary in the present case to analyse the precise extent of the powers and discretions conferred by the Victorian Act. What is I think clear is that the Act contemplates that the parties’ entitlements to share in the net proceeds of sale will, in the ordinary course, be defined by the order for sale, and that there is no provision for any subsequent reconsideration once those entitlements have been so defined.

145. In these circumstances, although I treated the question of reconsidering allowances for expenditure incurred and services provided up to the appointment of the Sale Trustee on 18 November 2019 as a matter of discretion, I would have had no power to make further allowances in Mr French’s favour, even if I had considered it right to do so. The rule in Woods was clearly applicable to the orders of 31 October 2019, to the extent that those orders dealt with, or failed to deal with, such allowances. The question is whether the rule prevented variations to those orders, so far as they applied to the administration and sale of the properties after 18 November.

146. I think it is clear (and I have already said so) that no question could have arisen about the Court’s power to extend the time limit for sale or to give additional directions to the Trustee concerning valuation. These orders represent administrative directions to the Trustee which may always be varied by the Court in accordance with the circumstances, and do not attract the application of the rule in Woods.

147. I think the better view is that my decision to vary the orders so as to prevent the Sale Trustee from drawing remuneration until its reasonableness had been reviewed falls into the same category. A remuneration order of the type made on 31 October 2019 always contains an implicit exception which excludes the Trustee’s recovery of fees and expenses which have been unreasonably incurred. All I have done is to make express provision to allow the Trustee’s ultimate entitlement to be determined. The orders are of an accounting nature and do not affect the Trustee’s rights.

148. It is true that the orders actually made on 24 October deleted provision for the Trustee’s remuneration to be paid out of the sale proceeds. But in making this variation, I did not intend to deprive the Trustee of his entitlement, ultimately, to receive payment of his fees and costs, to the extent not unreasonably incurred. With the benefit of hindsight, the order could have been framed differently in that regard.

149. Similar observations apply to the order on 24 October which deleted provision for the net proceeds to be distributed equally between Dr Bremner and Mr French. It was never my intention to disturb this equal division, but only to ensure that the Trustee did not feel obliged to pay out those proceeds before his remuneration entitlement had been determined. Again, with hindsight, a less intrusive variation might have been crafted the achieve this objective.

150. I am not sure whether it is necessary to make some further orders about these matters. If it is, the Court’s power to make an order of its own motion has expired (see Uniform Civil Procedure Rules 2005, r 36.16(3B)), but it is always open to the parties to agree upon a suitable variation (UCPR, r 36.15(2)). Otherwise, my orders may be corrected by the Court of Appeal.

151. This leaves the variation to the orders of 31 October 2019 to the extent that those orders provided for allowances in favour of Mr French (and Dr Bremner) for expenditure incurred, and services provided, after 18 November 2019. I think the question is finely balanced. The orders of 31 October could, and did, make provision in principle for such allowances. It would have been possible, given sufficient foresight, to craft orders to deal with the issues which have arisen. For example, the possibility of threats to the property from bushfires could readily have been foreseen. But it might be thought unrealistic to have expected the parties to deal exhaustively with all of the financial implications of such an issue in advance.

152. In the end, it seems to me that there is a clear distinction between allowances for the period prior to 18 November 2019 and thereafter. The question prior to 18 November 2019 is what rights the parties had as co-owners. After that date, they had no such rights; any entitlement to allowances depended on their making contributions which enhanced or maintained the sale value of the properties. Inevitably, the quantification (and perhaps even the recognition) of any such entitlements depended upon future events, and, in particular, upon the Sale Trustee’s conduct of the administration.

153. Two practical points may be made by reference to Mr French’s claimed efforts to protect the coastal properties against bushfire. First, Mr French might have rights by way of quantum meruit arising out of some form of tacit understanding with the Sale Trustee that he would look after the properties, or perhaps restitution might be available on the basis of necessity: K Mason, JW Carter and GJ Tolhurst, Mason & Carter’s Restitution Law in Australia (4^th ed, 2021, LexisNexis) at [840]. If so, Mr French would have entitlements against the Trustee independently of the orders in their original form. Second, the actual merits of Mr French’s claims cannot be determined on the evidence before me. I do not know how much, if anything, his claims are worth. They may not be worth anything, and the legal questions may not have to be determined.

154. In these circumstances, I do not propose to revisit the variations I have made. I am not satisfied that I was wrong to make them, and I do not think that the issue is of sufficient importance to justify further consideration of it. If I am wrong in this view, and any party wishes to take the matter further, I can be corrected by the Court of Appeal.

Costs

Costs inter partes

161. Counsel for Dr Bremner did not seek any order for costs of the motion against Mr French (or against the Trustee). Counsel submitted that there should be no order as to the costs of the motion inter partes. No application was made on behalf of the Sale Trustee or the PIA Trustee for any of their costs to be paid by either Dr Bremner or Mr French.

162. Mr French did not, as I understood it, seek any order for Dr Bremner to pay his costs of the motion. As Mr French was self-represented, any such order would only have covered disbursements, and it was not clear that he had incurred any recoverable disbursements in responding to the motion. And, for reasons given below, I would not have considered him entitled to a costs order against Dr Bremner in any event. Accordingly, there will be no costs order inter partes.

Solicitor-client costs of the Sale Trustee

163. As I understood Mr French, his primary submission on the Sale Trustee’s costs was that Dr Bremner should pay all of the Trustee’s costs of the motion (presumably on a solicitor-client basis), on the ground that the circumstances which gave rise to the motion were Dr Bremner’s fault. As I have indicated, this was not supported by counsel for the Sale Trustee, who sought an order that his client’s costs be paid, on a solicitor-client basis, out of the proceeds of sale of the properties.

164. I raised with counsel the possibility of deferring the question of the Sale Trustee’s costs of the motion, so as to deal with it at the same time as the Trustee’s remuneration. But counsel urged me not to take that course and to make an order now. At the end of the argument, I announced that I did not propose to do so, but on reflection I have changed my mind and will deal with the Trustee’s application after I have considered Mr French’s.

165. Mr French’s application: It is true that there was a long delay between November 2020, when the one-year period for the Trustee to sell the properties expired, and the filing of Dr Bremner’s Notice of Motion in August 2023, and that delay has not been adequately explained. But I think that the correspondence from 2020, and the course of the motion before me, shows that any application by Dr Bremner for an extension of the period would have been opposed by Mr French, whenever it was brought. Inevitably, the Sale Trustee would have been drawn into the application, as he has been drawn into this motion. In the ordinary course, the Sale Trustee would have been entitled to charge his reasonable costs of the motion out of the assets. I am not satisfied however that those reasonable costs would have been any lower if Dr Bremner had made an application promptly.

166. Moreover, it needs to be born in mind that, although Dr Bremner had standing to make the application, and indeed it was foreshadowed on his behalf that the application would be made, the application could also have been made by the Sale Trustee (or Mr French himself). Again, if the Sale Trustee had made the application there would inevitably have been costs incurred to which the Trustee would prima facie be entitled out of the assets.

167. I also think that I am constrained by the fact that the Trustee has not sought an inter partes costs order against Dr Bremner. It is the Trustee who is responsible for husbanding the sale proceeds so as to minimise the costs ultimately charged to the beneficiaries. I do not think the Court should second guess the Trustee’s judgment in that regard. The appropriate way to deal with the question is to consider whether the Trustee, having declined to seek to recover his costs against Dr Bremner, should be entitled to recover them from the assets. The proper approach for a party in Mr French’s position is to argue that the Trustee should not be entitled to recover, out of the sale proceeds, costs which should have been claimed from Dr Bremner inter partes. But for reasons given below, I do not think that any such complaint would be justified.

168. Sale Trustee’s application: The Sale Trustee’s costs have been incurred by him as a respondent to the present motion by Dr Bremner which was filed in August 2023. No complaint has been made about the level of costs incurred by the Trustee in responding to that application. But in asking whether the Trustee should have an indemnity for those costs out of the trust assets, the question is wider. It is necessary to ask how the motion came to be brought in the first place.

169. On the evidence before me, the Trustee’s conduct of the administration from the outset is open to criticism. The Trustee seemingly failed to take any steps to follow up his request to Mr French, in December 2019, to be given vacant possession of the properties in question. He also failed to retain agents and proceed with the sale. In the case of the Deddick Valley property, he failed to take the necessary preliminary steps of securing the vendor’s cooperation and obtaining funds with which to pay the stamp duty.

170. As already noted, in failing to obtain the stamp duty for the Deddick Valley property, the Trustee appears to have failed to take advantage of orders made on 31 October 2019, which would have allowed him to require payment from Dr Bremner. But there is a more fundamental point. Any lack of immediately available funds was no excuse for a course of complete inaction. The Trustee had positive obligations to execute the trust. If he was unable to do so, his duty was to seek advice on what to do, or to seek the appointment of a new trustee. In either event, the matter would have been brought back before the Court. No such action was taken by him.

171. It seems that the Trustee did not retain his own solicitor to act for him on the administration until late 2022. During the critical first year of the administration, he seems to have relied, in effect, on Dr Bremner’s lawyers to advise him about the execution of the trust (see above).

172. The reasons for the Trustee’s course do not appear in the evidence. One might surmise that it was out of a desire to save costs. But if so, that was a false economy. Events have shown that there was no substitute for the Trustee having his own source of independent advice, and the risks of not doing so should have been plainly foreseeable at the time.

173. Of course, had the Trustee obtained his own advice, he would have had to fund the cost of doing so himself until the sale of the properties. But this is the sort of calculation which must be born in mind by trustees in taking appointments of the present sort, just as the delay in payment of their own fees would be taken into account.

174. I acknowledge that the Trustee had to deal with a stream of unhelpful correspondence from Mr French, some of which appears to have been inaccurate, and all of which carried the threat, subtly or less subtly, that, if the Trustee proceeded with the sale, he would be exposed to claims by Mr French, or at least be left out of pocket. But a proper analysis would have shown that these threats were of no substance.

175. The lodgement of Mr French’s appeal did not operate as a stay of the orders under which the Trustee was appointed. If Mr French wished to obtain a stay, he had to make an application for one. Given the outcome of the stay application before me, it is at best doubtful whether the Court of Appeal would have taken a different view and granted him a stay.

176. As I have stated, Mr French’s Notice of Appeal was not in evidence and therefore it is not clear whether he ever formally sought the setting aside of orders. But even if he did, the question arises as to his entitlement to do so. While his case with respect to the properties as pursued before me was based on a contract, Mr French did not ultimately pursue any such case in the Court of Appeal. Rather, his contention was that there was a partnership between himself and Dr Bremner: see CA [41]. Had this claim succeeded, then it would have presumably led to orders for the dissolution and winding up of that partnership. In such a dissolution, the property would presumably have been treated as a partnership asset and would have been sold, with its proceeds being divided equally. It is therefore questionable whether Mr French could ever have articulated any basis on which he would have been entitled to remain on the land and resist the sale of the properties, even if his appeal had succeeded: cf Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [8].

177. Dr Bremner’s position was potentially more complicated. In his cross-appeal, as I have indicated, he sought to sustain his claim that there were resulting trusts over the properties. But for some of the properties, Dr Bremner did not, even on his own case, contribute all of the purchase monies. For those properties, at least, the most obvious remedy would be the sale of the property and the distribution of the proceeds between the parties. It is unclear whether Dr Bremner did in fact seek the setting aside of the sale orders of 31 October 2019, or whether the relief sought by him on appeal would have entitled him to obtain such relief, at least for all of the properties in question.

178. In any event, there was no doubt about the position actually taken by Dr Bremner, through his solicitors, with the Trustee. It was expressly stated on his behalf, by JWS, in their email of 3 December 2019 (see [43] above), that the Trustee’s obligation was to go on and sell the properties. No mention was made in that email of any countervailing claim by Dr Bremner in his cross-appeal.

179. Having concluded that the Trustee should have obtained advice, I must assume that the advice he would have received (in the first instance, from an independently retained solicitor, and, if necessary, from the Court) would have correctly apprised him of his rights and obligations with respect to the properties. In particular, he would have been advised that he was under an affirmative obligation to proceed with obtaining possession and appointing an agent so as to sell the properties. So far as the costs of obtaining valuations were concerned, he would have been advised that Dr Bremner was arguably liable to pay, but, more fundamentally, that it was not necessary to obtain formal valuations before proceeding with the sale.

180. Mr French’s complaint that the Trustee, in failing to sell, has missed the market, at first sight seems ironical given his obstructive attitude. But there is a serious issue behind it. The real beneficiaries of the orders, so far as Mr French’s half share of the properties were concerned, were likely to be his creditors. If Mr French’s bluster was allowed to delay the sale, they were the ones who were exposed to the risk of a fall in the market. Similar observations apply to the Trustee’s failure to obtain possession of the properties from Mr French or at least to secure some form of occupation payment from him.

181. The Trustee’s failure to obtain advice is highly relevant to his application for costs. In Re Beddoe [1893] 1 Ch 547, a trustee defended litigation on the advice of his solicitor and counsel, but failed to obtain judicial advice. The trustee failed in his defence and later sought indemnity from the trust assets. The English Court of Appeal held that, had judicial advice been obtained, the trustee would not have been authorised to proceed with the defence. The advice he had received form his own lawyers was in error. The Court considered it was unreasonable for the costs of the mistake made by the trustee’s lawyers to fall on the beneficiaries, and therefore the trustee should not receive any indemnity beyond the costs he would have incurred in making an application for judicial advice. The continuing importance of this decision was underlined by the High Court in Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 at [48].

182. It may be accepted that, as the Trustee stated in his letter to the Registrar of the Court of Appeal, the 2019-2020 bushfires and the Covid pandemic from March 2020 onwards would have disrupted the sale of the properties even if the Trustee had pressed on with it. I am prepared to assume in the Trustee’s favour that those factors, quite apart from the Trustee’s delay on account of the litigation, would have made it impossible to complete the sales by November 2020, the deadline specified in the original orders.

163. It is also true that Dr Bremner was completely unhelpful. In particular, he failed to provide the funds sought by the Trustee to fund the valuations. But, for the reasons I have given, the solution to the problem was in the Trustee’s hands, in the form of an application to the Court for orders to compel Dr Bremer to fund the administration, or at least for advice and directions.

164. By October 2020, Dr Bremner’s position on the immediate sale of the properties appears to have changed. He seems to have been open to some sort of stay (see above). But that did not, of itself, absolve the Trustee of all his responsibilities. In particular, it is difficult to see how it justified Mr French’s continuing occupation of the properties without payment.

165. Dr Bremner’s change of position also did not deal with the practical problem about the sale deadline in the orders. The Trustee needed to come back to the Court and seek an extension of time. This was the very course mentioned by the Registrar in his letter to the Trustee of 18 November 2020 ([70] above). Although the Registrar only said that the Trustee should consider taking that step, his letter expressly pointed up the need for the Trustee to obtain his own advice.

166. It is true that, as the Registrar pointed out, the making of such an application would cost money for the beneficiaries and that it would be better from their point of view for it to be done by way of consent order. Mr Stone did in fact, on 3 December, propose a “stay of operation” of the orders. But this was immediately (and predictably) rejected by Mr French.

167. The reason given by Mr French for refusing to consent to the orders sought by the Trustee, or at least one of them, was that the proposal did not come forward until the time limit on the sale had actually expired. For reasons already given, this was entirely spurious. But it does point up that the Trustee should not have got into that position. The time limit was a restriction on the discharge by the Trustee of his obligations under the orders and should have been dealt with before it expired rather than afterwards. Furthermore, once Mr French had refused, there was no reason for any further delay. The problem with the time limit was not something which was going to be solved by the Court of Appeal. It required a fresh order at first instance.

168. It may be accepted that it was always open to Dr Bremner to bring the necessary application, and that, through his solicitor, he foreshadowed doing so in December 2020, shortly after the Court of Appeal’s judgment was delivered. But the Trustee’s ongoing obligations to sell the properties, in the interests of both parties, were not discharged by waiting for Dr Bremner to take action. The Trustee’s inaction allowed Mr French to continue in occupation of the properties with no discernible benefit to the beneficiaries. It also resulted in more delay in getting the Deddick Valley property ready for sale, as a result of the death of the vendor. On any view, the Trustee should not have merely waited, from December 2020 onwards, for Dr Bremner to make an application.

169. The fundamental problem remains, I think, that the Trustee did not obtain his own advice. So far as the evidence goes, he never considered doing so, and continued to sit on his hands, until late 2022. Even then, he waited for more than nine months for Dr Bremer to file his notice of motion.

170. It may also be accepted that Mr French would have continued to oppose the sale by any means possible. In the end, it took hearings on two separate days, as well as a preliminary hearing, to deal with the present motion. Not all of that time, however, was occasioned by Mr French’s opposition. Some of it was attributable to the need to deal with other matters such as the Deddick Valley property and the question of valuation evidence. Mr French did of course oppose the making of any orders, and in that he was unsuccessful. But the Trustee cannot fully rely upon this. His own inaction gave Mr French a platform for his complaints, not all of which were unreasonable.

171. Again, I must assume that had the Trustee obtained advice, he would have become aware of what his obligations were and what was required of him. He should have foreshadowed an application to extend the time before it had expired. Although Mr French would have opposed that application, it would have been a simple one to mount, which would readily have been dealt with (probably in no more than a couple of hours) on a single day.

172. In these circumstances, I cannot regard it as a reasonable outcome for the Trustee to recover the full costs, on a solicitor-client basis, of participating in the present application by Dr Bremner. Events should never have unfolded in the way that they have. At the same time, it must be recognised that some application would have been necessary. The proper course, in my view, is to limit the Trustee’s recoverable costs of this motion to the amount of the solicitor-client costs which the Trustee would have incurred (at the then scale of fees) had he made an application in October or November 2020, in the way I have described.

173. Before making even such a limited order in the Trustee’s favour, there is one more thing which must be considered. The Trustee’s duty was to ensure that if he made an application, then the ultimate costs to the beneficiaries were minimised as much as possible. If the Trustee could have passed the costs on to other parties, but failed to do so, there would be no justification for him to recover those costs out of the trust assets.

174. So far as a costs order against Dr Bremner is concerned, however, I have no doubt that had an application been made in October or November 2020 for an extension, Dr Bremner would have consented to it. In any event, I am not satisfied that a costs claim by the Trustee against Dr Bremner would have been warranted. I have already stated that Dr Bremner has failed to pay the stamp duty and the valuation. But the obligations in the orders seemed never to have been put to him. He was also not responsible for delays attributable to bushfires, the Covid pandemic or Mr French’s obstructionism. I am not satisfied that if he had taken any different course the need for the application by the Trustee would have been avoided.

175. As to Mr French, I have already indicated that had an application been made, he would have opposed it. On the face of it, this would have justified a costs order against him. But the liability under that order might later have been caught up in the Part X arrangement, where it would have probably represented such a small proportion of Mr French’s total debts as to be insignificant. In the end, I am not satisfied that if such an application had been made, the order would have resulted in any recovery.

176. For these reasons, the appropriate course is to make an order that the Sale Trustee be entitled to recover his costs of the application out of the trust assets, but limited to the solicitor-client costs that the Trustee would have been entitled to recover out of the trust assets, had he made an application in October or November 2020 for an extension of time. If the amount of the limit cannot be agreed between the parties affected, it may be possible to have it fixed by the Registrar.

Orders

197. The orders made by the Court on the notice of motion at the end of the hearing on 29 September (and later corrected under the slip rule) were:

1. Order that the period of time specified in order 5(a) made by the Court on 31 October 2019 be extended to 12 months from today’s date.

2. Until further order:

1. suspend the operation of order 5;

2. direct that the trustee for sale take no steps towards undertaking a valuation of the subject property or to proceeding with sale of properties.

3. List the proceedings for further hearing on 20 October 2023.

198. The orders made by the Court on the notice of motion on 24 October (and later corrected under the slip rule) were:

1. Order that the third cross-defendant (the Trustee of the Property of Andrew Boyd French, a debtor), (“PIA Trustee”), be joined as the third respondent to the notice of motion.

2. Order that the suspension of order 5 made on 31 October 2019 be revoked.

3. Order that order 5 made on 31 October 2019 be varied as follows:

1. in subparagraph (e)(i), after “associated with” substitute “the holding, maintenance (including defence against bushfire) or sale of the Properties or any of them” for “the sale including remuneration owing to the Trustee”;

2. in subparagraph (e)(ii): after “moneys reasonably expended”, insert “or in payment to either French or Bremner of reasonable remuneration for services provided”, and, “after by each or either of them in” substitute “the holding, maintenance (including defence against bushfire) or sale of the Properties or any of them” for the remaining words of the sub-paragraph; during the period since 18 November 2019;

3. delete sub-paragraph (e)(vi) any remainder to be paid into an interest-bearing account to be maintained by the trustee, until further order of the Court.

4. Order that order 6 made on 31 October 2019 be varied by deleting the works “and is authorised” to the end of the order.

5. Make the following orders by way of addition to orders 2 to 6 made on 31 October 2019.

(6A) Pursuant to ss 228(2)(a) and 232 of the Property Law Act:

(a)    The Trustee is empowered to execute all documents on behalf of Bremner and French and the PIA Trustee for the purposes of selling the Properties and transferring the Properties to any purchaser/s, including any document appointing real estate agent/s to sell the properties, any contract of sale, vendor’s statement/s, transfer/s of land and any documents required under the Duties Act 2000 (Vic)

(b)   Within 14 days of the date of these orders, Bremner and French and the PIA Trustee provide all certificates of title for the Properties or nominate electronic control for the certificates of title for the Properties to the Trustee.

(c)   If any of Bremner or French or the PIA Trustee is unable to locate any of the certificates of title for the Properties, within 7 days of receiving a request from the Trustee, that party shall sign any documents required by the Trustee to apply for the issuance of replacement certificates of title.

(d)   Within 7 days of receiving a request from the Trustee, Bremner and French and the PIA Trustee shall withdraw, at their own cost, any caveats which they have lodged on any of the Properties.

(e)    Within 30 days of these orders, Bremner and French and the PIA Trustee shall deliver up all keys for all buildings and improvements on the Properties.

(f)   Within 30 days of these orders, Bremner and French and the PIA Trustee must remove from the Properties all vehicles, chattels and personal property.

(g)   In the event that any of Bremner or French or the PIA Trustee fail to comply with order 6A(f) above, the Trustee is empowered to remove and dispose of any vehicles, chattels and personal property remaining at the Properties as he sees fit.

(h)   Bremner and French and the PIA Trustee do all things as may be reasonably required by the Trustee, his selling agent or his solicitors for the purposes of achieving a sale of the Properties, including providing any access to buildings on the properties for the purpose of valuation and viewing by potential purchasers.

1. The Trustee shall not, without leave of the Court, take any further step to obtain formal valuations for the Properties or any of them.

(6B)    Reserve for further consideration:

(a)   the extent to which the Trustee’s remuneration should be paid out of the proceeds of sale;

(b)   the division of Mr French’s half share of the net proceeds of sale between him and the PIA Trustee.

6. Order that the material date for the purpose of any appeal or application for leave to appeal against these orders be extended until the publication of reasons for the making of orders.

7. List the proceedings on 10 November 2023 before Parker J for the determination of any further directions to be made in relation to the recording of the Trustee for Sale’s remuneration and expenses, on the application of the PIA Trustee.

199. The orders now made by the Court on the notice of motion are:

1. Order that there be no order inter partes as to the costs of the motion.

2. Order that the second respondent’s costs of the motion, on a solicitor-client basis, but capped to the solicitor-client costs which would have been recoverable had the second respondent made his own application at the time and in the manner described in this judgment, be paid out of the proceeds of sale of the properties the subject of orders 2 to 6 made on 31 October 2019.

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Amendments

03 June 2024 - [127], [134], [136], 137], [176] and [181] Grammatical and typographical errors

03 July 2024 - Amendment to title

Decision last updated: 03 July 2024